Charles Zelbst and Pamela Zelbst v. Arlene C. Harkins--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00293-CV

Charles Zelbst and Pamela Zelbst,

Appellants

v.

Arlene C. Harkins,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court No. 05-00-14437-CV

MEMORANDUM Opinion

Charles Zelbst appeals the trial court s judgment that he take nothing from Arlene Harkins. We affirm.

In Zelbst s one issue, he contends that the jury s finding that negligence by Harkins did not proximately cause Zelbst s damages was contrary to the great weight and preponderance of the evidence.

When a party attacks the factual sufficiency of an adverse finding on an issue on which she ha[d] the burden of proof at trial, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)); accord Matis v. Golden, 228 S.W.3d 301, 305 (Tex. App. Waco 2007, no pet.). The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. at 242 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)); accord Gilmore v. SCI Tex. Funeral Servs., Inc., 234 S.W.3d 251, 256 (Tex. App. Waco 2007, pet. denied). [I]n conducting a factual sufficiency review of the evidence an appellate court is to review the evidence according to the jury charge given and the jury findings in response to that charge, in the absence of a charge objection. Barker v. Eckman, 213 S.W.3d 306, 313 (Tex. 2006) (citing Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 447 (Tex. 1993)); see Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).

Zelbst complains of the following finding:

QUESTION NO. 1

Did the negligence, if any of those named below proximately cause the occurrence in question?

Answer Yes or No for each of the following:

a. ARLENE C. HARKINS N O

(C.R. at 14.) Zelbst points to evidence that he argues proves that Harkins was negligent. The trial court instructed the jury on negligence as follows:

Negligence means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

(C.R. at 13); see Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998); Thompson v. Gibson, 156 Tex. 593, 606, 298 S.W.2d 97, 105 (1957); cf. Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 755 n.1 (Tex. 2006).

Zelbst points primarily to the following evidence. Harkins was the driver of a truck that collided with Zelbst s car from the rear on Interstate 45. Harkins testified that she and Zelbst were in stop-and-go traffic in an area of road construction, and that traffic came to a complete stop at least twice. (3 R.R. at 219, 220.) Harkins s infant son, in the back seat, was crying. Harkins saw that, because of the traffic and road conditions, she would not be able to pull off safely for some distance. When traffic once started to move again, Harkins turned to the back seat to give a pacifier to her son. Harkins did not see any brake lights on the cars ahead of her. Harkins testified that when the traffic began to move again, she thought it would continue to do so. Harkins began to accelerate, and ran into the rear of Zelbst s car, which had again stopped. Harkins testified that she was turned around for only a couple of seconds, as though looking over her shoulder before changing lanes. (Id. at 222.) Zelbst testified that Harkins was traveling 50 miles an hour at the time of the collision; Harkins testified that she was going between 15 and 20 miles an hour. The force of the collision was not sufficient to activate either Harkins s or Zelbst s air bags; Zelbst testified that the failure of his air bags to be activated was explained by his front bumper s being pushed underneath the trailer in front of him. Zelbst also points to photographs of the damages to his and Harkins s vehicles. The accident report of the Texas Department of Public Safety trooper who investigated stated, based on Harkins s admissions, that Harkins was not paying attention and struck the rear of Zelbst s car. (Zelbst Ex. 1, at [2].) Harkins admitted fault, and that she caused the collision. (3 R.R. at 225, 4 R.R. at 55.) Harkins testified that she had believed that her conduct was safe and reasonable. (4 R.R. at 47, 56, 57.)

Arguing that Harkins admitted that she caused the collision, Zelbst cites cases holding that factually sufficient evidence comprised a defendant s admissions of negligence, see Castro v. Hernandez-Davila, 694 S.W.2d 575, 577-78 (Tex. App. Corpus Christi 1985, no writ), and admissions of contributing to causing a collision, see Chandler v. Newland, 542 S.W.2d 731, 732-33 (Tex. Civ. App. Fort Worth 1976, no writ). Harkins correctly cites a case distinguishing causation from negligence. See Risinger v. Shuemaker, 160 S.W.3d 84, 90 (Tex. App. Tyler 2004, pet. denied). Harkins testified at trial that her actions were a cause of Zelbst s damages. But Harkins did not testify that she was negligent, that is, that her actions were not those of a person of ordinary prudence under the circumstances. To the contrary, she testified that she reasonably believed that the traffic would continue to move while she briefly tended to her child, and that she could safely move forward as well.

Considering all the evidence, we hold that the jury s answer to Question No. 1 was not contrary to the great weight and preponderance of the evidence so as to be clearly wrong and unjust. We overrule Zelbst s issue.

Having overruled Zelbst s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs in the judgment)

Affirmed

Opinion delivered and filed May 21, 2008

[CV06]